Goh, Gavin --- "Australia's Participation in the WTO Dispute Settlement System" [2002] FedLawRw 7; (2002) 30(1) Federal Law Review 203
[*] LL B, B Com (WA), LL M (Syd), Grad Dip Arts (Monash), is an officer of the Department of Foreign Affairs and Trade. The author wishes to thank Justin Brown and Joan Hird for their constructive comments. The views expressed and the responsibility for any errors are entirely the author's and cannot be taken to represent those of the Department of Foreign Affairs and Trade.
[1] This in part reflects the level of activity in the WTO dispute settlement system compared to other international legal regimes. Since 1 January 1995, there have been 231 complaints notified to the WTO (178 of which involve distinct matters) with 49 panel and Appellate Body reports adopted, 15 active cases and 37 settled or inactive cases. Since 1946, the International Court of Justice has delivered 71 judgments and provided 24 Advisory Opinions: See Overview of the State-Of-Play of WTO Disputes, <http:// www.wto.org> and International Court of Justice—General Information, <http://www.icj-cij.org> .
[2] For a more detailed discussion of the dispute settlement process and Australia's management of WTO disputes, see Gavin Goh and Trudy Witbreuk, 'The WTO Dispute Settlement System' [2001] UWALawRw 3; (2001) 30 University of Western Australia Law Review 51.
[3] Article 3.7 of the DSU.
[4] The DSB is made up of all WTO Members and has the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations and authorize retaliation in the event of non-implementation by a Member.
[5] It would be very difficult in practice for consensus not to adopt a panel or Appellate Body report to be reached, given this would require the successful party to join the other Members to block the report.
[6] United States–Continuing Dumping and Subsidy Offset Act of 2000 ('Byrd Amendment'), WT/DS217.
[7] WT/DS18/AB/R, para [207].
[8] SPS Agreement, Annex A, para 4. A different standard applies to food safety risk-assessments, which must evaluate the potential for adverse effects on human or animal health.
[9] WT/DS18/AB/R, para [121].
[10] WT/DS18/RW, paras [7.56-7.58].
[11] WT/DS18/RW, para [7.90].
[12] WT/DS18/AB/R, para [197].
[13] WT/DS18/AB/R, para [207].
[14] Article 27 of the Vienna Convention on the Law of Treaties provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
[15] Article 22.9 of the DSU also provides that the dispute settlement provisions of the WTO Agreements may be invoked in respect of measures taken by regional or local governments or authorities within the territory of a WTO Member.
[16] WT/DS18/RW, para [7.16].
[17] WT/DS161/AB/R, para [145].
[18] WT/DS161/AB/R, paras [147] and [149].
[19] WT/DS161/AB/R, para [182].
[20] Minister for Trade, Commonwealth of Australia, WTO: Korea Beef–Agreement Reached on Implementation, Media Release, (23 April 2001) 1.
[21] It is noted that agricultural subsidies are subject to their own disciplines under the WTO Agreement on Agriculture.
[22] Articles 1 and 2 of the SCM Agreement.
[23] For a more detailed discussion of the SCM Agreement, see the WTO website at <http:// http://www.wto.org/english/tratop_e/scm_e/scm_e.htm>
[24] WT/DS126/RW, paras [6.33-6.34].
[25] WT/DS126/RW, para [6.35].
[26] The arbitrators in EC–Bananas considered that the authorization to suspend concessions or other obligations (retaliation) is a temporary measure pending full implementation of WTO findings by the Member. This temporary nature indicates that the purpose of countermeasures is to induce compliance and not to provide a punitive remedy. The arbitrators also assessed the level of retaliation on the basis of potential or future trade opportunities as opposed to past injury: WT/DS27/ARB, paras [6.3, 6.11].
[27] WT/DS46/RW, footnote 17; WT/DS70/RW, paras [5.46-5.48}.
[28] WT/DSB/M/75, 8.
[29] Argentina–Footwear, WT/DS121/AB/R, paras [93-94].
[30] WT/DS177/AB/R.
[31] WT/DS177/AB/R, paras [94-95].